CHILD’S TESTIMONY, THE LEGAL PRINCIPLE:

Often times in the neglect and abuse, termination of parental rights, and adoption litigation — the child’s testimony can tip the scale one way or another. Under the adoption statute, the child’s position, if the child is fourteen or older, shall be considered by the court. Under the TPR statute, §16-2353(b)(2)&(4); mental and emotional needs of the child as well as the child’s opinion as to his/her best interest are both codified. In child custody cases, the child’s opinion as to his/her physical custodian is one of the statutory elements, §16-914(3)(B). Regardless, in family cases, the litigants face resistance from both the government as well as the GAL to the child testifying at times under the auspices of irreparable harm to the child but at times only to eliminated damaging testimony. There is no question that the court is first and foremost charged with protecting the best interests of the child. However, there are ways to have the benefit of having the best evidence by having the child testify first hand while both curtailing and eliminating the potential harm to the child.

The legal principle, as to the applicable standard for the court to consider before allowing child’s testimony was concisely outlined in In re Jam.J., 825 A.2d 902 (D.C. 2003). The Court of Appeals specifically adopted a three-prong analysis that the trial court needs to carefully consider and balance. The court has to conclude that there is a “risk of serious harm” to the child due to his testimony and such finding has to be based “upon concrete evidence individualized to the particular child.” Expert testimony would be the best source of evaluating risk of harm and thus required. At this juncture, a therapist testimony would be critical to establishing whether the child would sustain “risk of serious harm.” The opposing side gets to cross examine the therapist, to determine whether the testimony is based on substantive therapeutic relationship or just a therapist brought in by the government supporting their position.

Second, if serious risk of harm to the child is established, then the court is charged with finding methods of alleviating or ameliorating such risks by imposing restrictions such as using closed circuit cameras, in-camera testimony, or limiting the scope and degree of questioning. The court has broad resources at its disposal and just because a serious risk of harm exists – such should not eliminate child’s testimony in a fashion to reduce such risk and also to allow critical testimony to be elicited.

Thirdly, the court must balance and consider “the probative value of the child’s testimony and the parent’s concomitant need for it.” The court can take proffer from the parent as to the anticipated testimony and its value versus the potential harm to the child. The Court in Jam.J. emphasized that the parents have a fundamental right to confront and examine the child especially when such proceedings involve termination of parental rights. That is, a permanent termination of the parent child relationship. In neglect proceedings — parents face serious state interference in that relationship, interference that could lead to both a temporary or permanent loss of custody or that relationship.

Thus in cases where the child is older, or that his/her potential testimony would be critical to court’s ruling, a Jam.J. motion should be filed and litigated not only to preserve your client’s right but to also preserve the record on appeal. After all, children depending on their age, disposition and maturity, are in the best position to expostulate to the court and the parties as to what is in their best interests. The Law Office of David Stein is the premier litigation firm specialized in family law litigation: familylawdc.com.